Agency actions separating a Federal or Postal employee from Federal Service often contain language which comes close to allowing for a Federal or Postal employee to assert the “Bruner Presumption” (that legal presumption which essentially states that the declaration and admission by the Agency triggers a legal presumption that a Federal or Postal employee is entitled to, by a matter of law, to Federal Disability Retirement benefits under FERS or CSRS), but not close enough.

Such language will instead be couched in references to medical documentation which has been previously reviewed by the Agency; will embrace an acknowledgement that the Federal or Postal employee has a “medical condition”; and will sometimes even entertain verbiage evincing sympathy for the Federal or Postal Worker’s “situation” — but still will base the removal upon other considerations, such as “excessive absences”, “failure to maintain a regular work schedule”, etc.

The question ultimately then becomes: Is it important, leaving aside relevance, to fight the agency to amend or otherwise re-characterize the original proposal to remove, in order to obtain the Bruner Presumption?

The Bruner Presumption is a legal mechanism which gains greater weight and importance when a Federal Disability Retirement application has been denied twice by the Office of Personnel Management (both at the Initial Stage of the process, than at the Reconsideration Stage), and one therefore finds one’s self before an Administrative Judge at the Merit Systems Protection Board. But such appearance before the MSPB presumably means that there are other problems with a case — most often, insufficient medical documentation.

The Bruner Presumption aside, the Federal or Postal employee must still prove, by a preponderance of the evidence, one’s case, by submitting sufficient medical documentation. The Bruner Presumption is simply that “extra” ingredient that may be helpful if all other factors have been met in proving a Federal Disability Retirement case.

While helpful, it is not a certainty for an approval. While better to have than not, one must still prove one’s case. While triggered most effectively at the MSPB, a less-than-Bruner-trigger can still be argued at all stages of the process. Just some thoughts.

Then, the frustrating scenario is when the Agency — in the body of the proposed removal letter — refers to and acknowledges the existence of multiple medical conditions which form the foundation, reason and justification for being unable to maintain a regular work schedule or being absent from the job (whether with or without official sanction or approval).

The key in such circumstances, of course, is to try and attempt to make the “implicit” (references to one’s medical conditions and their impact upon one’s inability to perform one’s job) “explicit” (having the Agency change or amend the reasons to instead state: “Removal based upon the employee’s Medical Inability to Perform his or her job”).

Such a change, of course, would be helpful in a Federal Disability Retirement application under FERS or CSRS, precisely because it would invoke the Bruner Presumption, which would then make it that much more difficult for the Office of Personnel Management to deny a Federal Disability Retirement application. For, that is the ultimate goal: to obtain an approval of the Federal Disability Retirement application; and any such advantage gained brings the Federal or Postal employee one step closer to that ultimate goal.

Agencies will often act in predictable fashion; they act based upon prior actions engaged in; they act as an organic constituent of procedures and policies previously followed (often blindly and without thought) in the past; they act in self-interest, and often with a very narrow, myopic path and goal.

If an agency ignores the medical conditions and the documentation submitted showing the medical conditions of a Federal or Postal employee, and removes an individual from his or her Federal position based upon reasons other than one’s medical inability to perform one’s job (whether intentionally or because no one bothered to look at the medical documentation), then the resulting action can obviously impact a Federal Disability Retirement application under FERS or CSRS. Often, the Agency’s general counsel will be the first person to finally listen to reason, and by then an appeal has been filed with the Merit Systems Protection Board, for the sole and narrow purpose — not of overturning the termination or getting one’s job back, but — of rescinding the adverse decision of removal and reissuing a removal based upon one’s medical inability to perform one’s job.

This course of action, however, is not always necessary. Often, the adverse action, the delineation of poor performance, etc., can be directly tied to one’s progressively deteriorating medical condition, and the Agency’s own actions can be used to one’s advantage in proving a Federal Disability Retirement case. Each case is different, and discretion in fighting for that which is helpful, and recognizing that what may “appear” to be adverse, is actually to one’s benefit, is the key to winning a Federal Disability Retirement case under FERS or CSRS.

Man is the only animal who has more than one side on his mouth, and the lawyer is a special species of the animal who, unlike the limitation of the cat who only has nine lives, possesses an infinite number of geometric sides of a mouth. Lawyers make concurrent and conflicting arguments all the time, but as long as the arguments are bifurcated and the issues kept separate and do not directly conflict or contradict, there is certainly nothing wrong with that.

In a Federal Disability Retirement case, if a Federal or Postal employee wants to pursue a collateral issue in another forum while concomitantly filing for Federal Disability Retirement benefits, there is normally no conflict or problem which arises. But in the limited instance where a Federal or Postal employee is attempting to reverse a termination and regain a position, at some point in the process the two issues may come to a direct conflict.

Normally, however, the issue involves merely changing the underlying reasons which the Agency proposed for the termination, and it is a legitimate argument to litigate with the Agency to change the terms of the termination.

Seven False Myths about OPM Disability Retirement

1) I have to be totally disabled to get Postal or Federal disability retirement.
False: You are eligible for disability retirement so long as you are unable to perform one or more of the essential elements of your job. Thus, it is a much lower standard of disability.

2) My injury or illness has to be job-related.
False: You can get disability even if your condition is not work related. If your medical condition impacts your ability to perform any of the core elements of your job, you are eligible, regardless of how or where your condition occurred.

3) I have to quit my federal job first to get disability.
False: In most cases, you can apply while continuing to work at your present job, to the extent you are able.

4) I can't get disability if I suffer from a mental or nervous condition.
False: If your condition affects your job performance, you can still qualify. Psychiatric conditions are treated no differently from physical conditions.

5) Disability retirement is approved by DOL Workers Comp.
False: It's the Office of Personnel Management (OPM) the federal agency that administers and approves disability for employees at the US Postal Service or other federal agencies.

6) I can wait for OPM disability retirement for many years after separation.
False: You only have one year from the date of separation from service - otherwise, you lose your right forever.

7) If I get disability retirement, I won't be able to apply for Scheduled Award (SA).
False: You can get a Scheduled Award under the rules of OWCP even after you get approved for OPM disability retirement.